On Friday, the International Court of Justice, in The Hague—one of the six principal parts of the United Nations—found that Israel must take action to prevent genocidal violence by its armed forces; “prevent and punish” the incitement to genocide; and insure that humanitarian aid to Gaza is increased. South Africa had accused Israel of committing genocide against Palestinians in Gaza during the war that began in response to Hamas’s October 7th terrorist attack. (Twelve hundred people were killed in that attack; more than twenty-five thousand Palestinians have been killed in Israel’s bombardment.)
The ruling of the I.C.J.—which is distinct from the International Criminal Court—fell short of finding Israel guilty of having committed genocide, but such a decision could take years; South Africa had also urged the court to order an immediate ceasefire, which it did not do. (The court does not have an enforcement mechanism.) But the I.C.J. still found cause for great concern about Israel’s military actions, and also the statements of its leaders. “At least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza,” the court found, “appear to be capable of falling within the provisions of the [Genocide] Convention.”
I recently spoke by phone with Oona Hathaway, a professor at Yale Law School and the director of the school’s Center for Global Legal Challenges. She is also a nonresident scholar at the Carnegie Endowment for International Peace. During our conversation, which has been edited for length and clarity, we discussed the likely impact of the ruling, why the court was not going to make a definitive ruling on genocide so quickly, and why the court’s judgment should be considered surprising.
How do you understand what this decision is saying?
I think what this decision is saying is that Israel has engaged in acts that could plausibly constitute violations of the Genocide Convention—both genocidal acts and perhaps incitement to genocide—and that there’s enough here that’s been alleged, that those allegations are plausible. So they haven’t found that genocide has necessarily taken place, but the situation is dire enough that it is necessary for the court to issue these provisional measures.
So it’s a pretty big blockbuster, I think, because the court is finding that Israel, which of course is a state that was created after World War Two, for the protection of those who had been subject to the horrors of the Holocaust, is the subject of plausible claims that it is in violation of the Genocide Convention, which was a convention that, in large part, was created for the purposes of condemning and attempting to prevent genocides like the Holocaust from ever happening again. So this is a momentous decision.
There has been disappointment from some Palestinians, and from some supporters of the Palestinian cause, that this was not labelled genocide right now. Is that something that should have been seen as a realistic possibility?
That was never on the table. What South Africa was asking here is for provisional measures, and when the court is making a decision on provisional measures, it’s not making a decision on whether the merits demonstrate the claims that are made by the applicant have been proved, because it doesn’t have any of the evidence in front of it. It just has arguments of the two sides in front of it. All that it is being asked to do is determine whether the allegations that are being made could plausibly constitute a violation of the Genocide Convention and, moreover, that the situation is dire enough that the court should act to preserve its capacity to actually render a decision on the merits, because that’s necessary in order to prevent the rights at issue in the case from being violated.
What does that mean in practice when you say “preserve its capacity to actually render a decision on the merits”?
The idea behind it is that the court is going to take time to actually contemplate the claims that are being made in the case, and typically an I.C.J. case takes years to come to a final decision on the merits. And in a case like that, then the question becomes, Well, if we wait years before we render a decision on the case, it may be that all the damage is done, and the thing that the litigants are trying to prevent, that the applicant is trying to prevent, it’ll just be too late. And, in particular, in the case of a genocide, it’s pretty obvious. If there’s a claim that there’s a genocide ongoing, and the court says, “O.K., we will accept your papers and we’re not going to render a decision for two years,” at that point, the genocide will have taken place, and there’s no rolling back the clock and resurrecting the people who’ve been subject to the genocide.
So the purpose of this process is to say, “Has South Africa said enough here that we think that there could be violations of the Genocide Convention, if these allegations are eventually proved when we get to the merits of the case, and are we persuaded that the situation is dire enough that it calls for us to issue provisional measures, in order to preserve the right to the parties so that, by the time we get to the merits, those rights have not been so obliterated that our issuing of a merits decision is going to have no practical effect at all?” So that’s where we are, we’re at that very preliminary stage, and that’s why they were able to make a decision in two weeks, based just literally on the submissions of the parties and no introduction of any kind of evidence at all that you would expect.
When you said there was no chance that they would rule on the question of genocide, is that something that was explicitly known at the outset?
The International Court of Justice follows its own procedures, and people who are not used to following the court, and are tuning in for the first time, might not understand how its decision-making works, and may not realize that what was happening here was a call for provisional measures, which is a certain procedural process that is never asking the court to make a decision as to whether genocide has in fact taken place. And even someone who may have tuned in to the arguments that were made when South Africa was detailing all of the events that it argues constitute genocidal acts, one could listen to that and think, Oh, this is calling on the court to decide that in fact there has been genocide. So I understand the misunderstanding.
But if you listen closely to those oral arguments, South Africa said very explicitly that the court didn’t have to make a decision as to whether genocide was established. It simply had to decide that there was enough of a basis to come to the conclusion that there could be, that there’s a plausible case made that there are violations of the Genocide Convention. And this is important, I’ll note, because genocide is extraordinarily difficult to prove. And I think people might be understating the importance of this decision because they think that somehow it’s obvious that genocide is taking place here, and so it’s a bit of a yawn to say that they’re plausible allegations.
Can you then tell us why it’s so hard to prove, and also what the Genocide Convention is?
The Genocide Convention is a treaty that was entered into by states after World War Two, and after the Holocaust, which prohibits states from engaging in genocide. And, really, it in many ways invented the term “genocide,” the idea that destruction of a group in whole or in part is a crime in and of itself, and one of the most heinous crimes that can be committed was really a process of invention. It’s easy to forget that that was not really understood to be a crime until not long before the Genocide Convention was put in place.
And the Genocide Convention identifies the commission of certain acts as genocidal acts, including killing a group in whole or in part. And it requires establishing not only that those acts were committed but that they were done with the specific intent to destroy a group in whole or in part. And that specific-intent requirement makes genocide extraordinarily hard to prove because you have to show not only that they’ve killed a lot of people, or that they’ve made life difficult, if not impossible to live for a group of people, but also that they meant to do it, and that they were doing it.
The language is “intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” The “as such” is what you are referring to, right?
Yes.
And I assume that’s also why the court takes note of comments from Israeli leaders, because I assume that that goes to the “as such,” which is, I think, one of the broad reasons when people look at genocide, they often turn to the rhetoric of leaders of the state accused of carrying it out, correct?
Right. The court makes several important findings here. One is that Palestinians are a group that is protected by the Genocide Convention, and that the Palestinians in Gaza are a substantial part of that protected group, and therefore acts that are taken against the Palestinians could be a violation of the Genocide Convention because it could be acts that destroy a group in whole or in part. And then the question is: How do you prove intent? Well, you can prove intent in part through circumstantial evidence, like actions taken to make life unlivable in that territory for the people who live there. And the court takes some notice of various kinds of allegations that have been made about the conditions of life for people in Gaza, but then it also looks to the statements of Israeli officials as a way of providing some evidence that there could be specific intent.
They don’t have to determine that it in fact has happened here. But I think they detailed those comments as a way of making clear that in the court’s view there was enough there, in the application and in the public evidence, that suggests that it is possible that Israel in fact has that genocidal intent.
Now, this was the hardest part for South Africa from the get-go, to show that there was this specific intent to destroy a group in whole or in part. Partly because one way in which Israel can and has defended itself is to say, “Look, we are not trying to destroy Palestinians as a group in whole and in part. What we are trying to do is defend ourselves, and it’s Hamas’s fault that these civilians are in the way, and that they are being killed. But that’s not our specific intent to do so, and certainly not to destroy in whole or in part.” And what’s interesting here, I thought that there was a chance that that argument was going to hold sway with a number of judges, and it turns out it held sway with only one of the seventeen, who was persuaded that there wasn’t enough alleged here to support a claim of genocidal intent. But, with the sixteen others, including, interestingly, the judge appointed by Israel, and he found in favor of some of the provisional measures—not all of them—which suggests that he believed that there were enough allegations that, at least, some of the acts alleged could amount to genocide, which includes not just the genocidal acts but specific intent. So, to me, that was a very striking finding.
In the case of Russia and Ukraine, which the court also ruled on a while back, it did order a ceasefire. Why not here?
Yeah, it did. And these are two very different opinions, and two very different cases. So the Russia vs. Ukraine case was a case where Ukraine brought the case against Russia under the Genocide Convention. And what the case said was: Russia had launched this war against us, and Russia claimed that it was entitled to launch this war because we, Ukraine, were engaging in genocidal acts in the eastern part of Ukraine, and that those are false allegations, and that claim is the basis for the invasion, and so we’re calling on the court to determine that that is not a legitimate basis for the invasion by Russia, and that the invasion therefore is unlawful and a violation of international law.
And so the court in its provisional orders there said exactly that. It said there’s no plausible claim here that there was any genocide being committed by Ukraine, and so to the extent that Russia’s invasion has been justified, in order to bring an end to a supposed genocide, it needs to stop that invasion because there was no genocide for it to stop. Now, this is a very different kind of case, because this is a case where no one really disputes that Israel has a right to defend itself against Hamas.
And the court calls for the return and release of the hostages being held by Hamas currently as well.
Yes, it did. I don’t think that it was ever reasonable to expect the court to say: Israel has to stop all fighting altogether. And I don’t think that’s reasonable to have expected because Israel does have a right to self-defense. But the question is not whether they have a right to self-defense. In this case, the question is whether it’s consistent with the Genocide Convention. Now, it’s worth noting that because this case gets into the court only under the Genocide Convention, and it does so because the Genocide Convention has a provision within it that says any disputes under the Genocide Convention can be brought to the International Court of Justice. We don’t have in front of us, in this case, any claims about international humanitarian law or the Geneva Conventions, which is a separate body of law that’s relevant but is not really in front of the court.
So it seems like what you’re saying is that there’s nothing inconsistent about the court saying that it’s plausible that acts of genocide occurred, and are occurring, and that the court is not going to call for a ceasefire.
They’re not incompatible, because what the court is saying is that we’re not going to order a ceasefire, but Israel is obligated to take these specific acts and to carry out its ongoing conflict that’s consistent with the Genocide Convention. And it goes on to provide a number of other specific measures that Israel needs to take in the course of defending itself. So I think if they had said, “You can’t defend yourself. There has to be a ceasefire,” I think Israel would have responded, and I think it would’ve had a lot of sympathy to this response that it’s not within the court’s power to say that the state doesn’t have a right to self-defense, because, under Article 51 of the U.N. Charter, states have the right to engage in defense of themselves, and no one has suggested otherwise here. It’s just that they can’t do that in ways that violate international law.
How do you view this decision, historically?
I think it is important, particularly coming on the heels of some other decisions by the I.C.J. There was a case that Gambia brought against Myanmar, which was also under the Genocide Convention, and another prior case that was brought by the Netherlands and Canada against Syria, where the court accepted a new form of standing, which is also the form of standing that’s been used by South Africa here, which basically means that, if there is an obligation owed to all state parties to a convention like the Genocide Convention, or the Torture Convention, that any state that’s party to that convention can bring in action in the I.C.J. if there’s an alleged violation of that convention, and hold that state to account.
And that’s a pretty revolutionary move for the court because it means that, even in cases where the applicant has no connection whatsoever to the events unfolding—and here South Africa doesn’t claim it has any connection to its claimed acts of genocide in Gaza—it can bring the state responsible for those actions to account in the I.C.J., and have the I.C.J. render a decision as to whether it is violating international law. And this really reaffirms that this is a new term for the court, that the court is prepared to do this on a regular basis. And, even in cases where you’ve got states with very powerful supporters—like Israel, of course, has a very powerful support in the United States—it’s willing to wade into some extremely hot political situations, and try to bring the reason of law to those situations.
It also could be an important step forward for the law because it gives a way of enforcing international human-rights obligations that, previously, there was no obvious way in which those obligations would be enforced.
Enforcing them or calling attention to them?
That’s a fair question. Enforcing them in the sense of holding to account the state that’s responsible for those actions and ordering them to act consistent with the law, and finding that the specific actions that they’re taking are inconsistent with their treaty obligations, and giving specific orders as to how they’re supposed to respond. There is this further question that I think your question suggests, which is: Well, then who’s going to enforce that? So they’re breaking the law already, which is to say they can just ignore this opinion, and I think you’re right to ask that question. We’re going to see, I think, in the coming weeks, how Israel responds to this. And one possible course Israel might take is to decide to ignore it or to play it down. And then the question is going to be how other states respond to that, and, in particular, how the United States responds to that.
Because a decision like this can, by itself, have a really significant impact, even if you don’t have, say, the Security Council ordering something. Even if that doesn’t happen, a decision that there are plausible claims that Israel is in violation of the Genocide Convention, in the way in which it’s waging this war, should have a serious impact on states that are supporting Israel in this war, and in particular the United States, which is providing military assistance. A decision can lead them to ask the question as to whether they are potentially in violation of their own legal obligations by continuing to support Israel with military assistance. So, even if Israel is determined to ignore this decision, this decision could still have a significant impact on Israel, depending on how other states respond to it. ♦
